When a state lawyer stands before the International Criminal Court and says "The State of X submits," they are performing one of the most consequential legal fictions ever invented. The state is not a person. It has no mouth, no conscience, no singular will. Yet it speaks with one voice, and that voice binds millions. Right now, there are seventeen active state-on-state cases at the International Court of Justice and nine preliminary examinations at the ICC involving state parties. That fiction is being stress-tested more than any time since the nineteen forties. So Daniel sent us this one — he's asking how lawyers who represent states before international tribunals grapple with the inherent problem of claiming to speak for citizens who profoundly disagree with the position being taken. And whether the whole mechanism is sustainable.
The question gets at something most international law textbooks glide right past. They tell you states are the subjects of international law, they have standing, they have rights and obligations — but they never stop to ask what it means for a fictional entity to have a voice in a courtroom. I've been digging into this and the architecture is genuinely strange once you look at it closely.
Strange in that the entire system rests on an assumption that was already philosophically shaky in sixteen fifty-one and has only gotten shakier. Hobbes gives us the sovereign as the unified voice of the commonwealth — the Leviathan speaks, and its speech is the speech of all because the social contract makes it so. That gets dressed up in legal language over three centuries, hits the Montevideo Convention in nineteen thirty-three which codifies the state as a unitary legal person with a permanent population, defined territory, government, and capacity to enter relations with other states. Then the ICJ Statute Article thirty-four, paragraph one, grants standing only to states. Not to sub-state entities, not to citizen groups, not to minority parties.
The architecture forces a single narrative even when the state is internally fractured. Which is always.
Even a government with sixty percent approval — a landslide in most democracies — is still taking legal positions that forty percent of its citizens reject. And those forty percent are legally bound by whatever the state argues. Their names are on the submission whether they like it or not. The system has no mechanism for saying "some of our citizens dissent.
Which is different from how a corporation does it.
A corporation's legal position is authorized by a board and ultimately by shareholders — a defined, consenting group. You buy shares, you accept the governance structure. If you don't like how the company litigates, you can sell. There's no equivalent exit for a citizen. You're born into a state's jurisdiction, and its legal positions are attributed to you whether you consent or not. The authorization chain is completely different.
Let's talk about that chain. When a state files a submission at the ICJ, who actually writes it?
This is where the fiction gets really granular. The authorization chain typically starts with the attorney general or minister of justice, who signs off on the broad legal strategy. But the actual arguments — the specific legal reasoning, the choice of precedents, the framing of the facts — those are crafted by career civil servants. Solicitor general offices, foreign ministry legal departments, sometimes external counsel brought in for specialized cases. These are not elected officials. They do not represent citizens directly. They are professional lawyers doing professional legal work.
Yet their work product is presented as the voice of an entire nation.
And here's the thing — most of them are deeply aware of the dissonance. There's a book that came out last year, "The Advocate's Dilemma" by Sarah Chen from Oxford University Press. She interviewed former solicitors general from multiple countries, and the interviews are remarkable. These are people who spent careers arguing positions they sometimes personally disagreed with, on behalf of governments they sometimes voted against, claiming to represent citizens who sometimes protested in the streets against the very arguments being made in court.
What did they tell her?
She identifies three coping strategies. "I am not the state, I am the state's voice. I am a professional advocate, like a defense attorney who represents a client they believe is guilty."My duty is to present the best legal argument available, not the morally correct one. The court will sort out the merits."The system is flawed, but it's the only one we have, and abandoning it would be worse than participating in it.
The first one is interesting. The lawyer-as-mouthpiece model. It works in domestic criminal law because everyone understands the defense attorney doesn't personally endorse their client's actions. But when the client is a state, and the lawyer is saying "we the people of France submit" — that "we" is doing a lot of work that the domestic analogy doesn't capture.
The "we" is not optional. That's the unity of the state doctrine. The ICJ doesn't have a procedure for a state to say "we're filing this, but we want the court to know that thirty-five percent of our parliament voted against it and there were street protests in the capital." The state speaks with one voice or it doesn't speak at all.
Though there's at least one interesting exception.
The UK's twenty twenty-three submission in the Chagos Islands advisory opinion. They included a footnote — a footnote — acknowledging what they called "diverse views within the United Kingdom" on the matter. It was an extraordinary moment. Here was one of the most established legal systems in the world essentially saying, in a footnote, "not everyone here agrees with what we're about to argue.
The dissenting citizen reduced to a footnote.
Even that was legally risky. The standard view is that acknowledging internal division weakens your position. It gives the other side an opening. It suggests the state isn't fully committed to its own argument. Most government lawyers would never do it.
Let's make this concrete. Walk me through one of the big cases.
South Africa versus Israel at the ICJ, filed in late twenty twenty-three and heard through twenty twenty-four. South Africa argued that Israel's military operations in Gaza constituted genocide under the Genocide Convention. The legal team was led by some of South Africa's most prominent international lawyers. They filed an eighty-four page application, presented oral arguments over two days, and framed the case as South Africa's obligation under the convention to prevent genocide.
Inside South Africa?
The South African Jewish Board of Deputies publicly opposed the case. Several opposition parties criticized it as politically motivated, arguing it damaged South Africa's diplomatic credibility and diverted attention from domestic crises. There were public debates, op-eds, social media campaigns. South African citizens were divided, and divided intensely.
Did the ICJ care?
Not in the slightest. The court treated South Africa as a unitary actor. The internal dissent was legally invisible. South Africa's submission was South Africa's submission. The fact that some South African citizens felt misrepresented by their own government's legal position was irrelevant to the court's analysis. It couldn't be relevant, because the court has no framework for processing it.
This cuts both ways, right? When a state wins, citizens who opposed the case feel their government spent resources on something they disagreed with. When a state loses, citizens who supported the case feel betrayed twice — once by the outcome and once by the knowledge that their government's arguments failed to persuade.
That's the legitimacy gap. And it's one of the most underappreciated knock-on effect of the unitary representation fiction. After the Chagos advisory opinion, where the ICJ said the UK should decolonize — UK citizens who supported the Chagossian cause felt the UK government's entire defense had been illegitimate from the start. Meanwhile, citizens who supported the UK position felt the court was biased and the government's lawyers had failed them. Both groups lost trust in the system, just for different reasons.
The mechanism that's supposed to resolve disputes actually generates distrust in both the legal system and the government. That's perverse.
It gets worse when you look at forum shopping. States choose which tribunal to bring cases to based on expected outcomes. But because they have to maintain the fiction of a single unified state will, they end up arguing contradictory positions across different forums. The classic example — the United States argues before the World Trade Organization that trade restrictions are sovereign rights that should be respected. Then it argues before the ICC that universal jurisdiction is valid and states should be able to prosecute crimes regardless of sovereignty concerns. These positions are in tension.
They're presented as if they come from the same coherent state will.
Which they manifestly don't. They come from different legal teams in different agencies with different institutional interests. The State Department's trade lawyers and the Justice Department's international criminal law specialists aren't coordinating to produce a philosophically consistent theory of sovereignty. They're doing their jobs. But the fiction requires us to pretend there's a unified state position behind both arguments.
There's another dimension here that the prompt is getting at — the dissenting citizen who actively wants the state to be held accountable. When a state goes before the ICC and argues it should not be investigated for war crimes, what happens to the citizens who believe it should be?
They have essentially no formal mechanism. Their only option is an amicus curiae brief — a friend of the court submission — which is entirely discretionary. The court can accept it, ignore it, or read it and give it no weight. And even if accepted, an amicus brief is not a "state position." It doesn't carry the procedural rights that come with being a party to the case. It's a letter to the court, essentially.
The citizens who want their state prosecuted have to hope the court reads their mail.
The court is under no obligation to do so. Compare this to corporate law. If a company's board takes a legal position that harms shareholders, the shareholders can sue for breach of fiduciary duty. There's a mechanism. It's not perfect, but it exists. For citizens who disagree with their state's international legal positions, there's nothing equivalent. The nineteen sixty-six ICCPR Optional Protocol allows individual complaints, but only after exhausting domestic remedies, and only for human rights violations — not for disagreements over legal strategy. If your government argues before the ICJ that a particular trade agreement is valid, and you think it isn't, you cannot file a counter-brief. You cannot intervene. You cannot be heard.
What about the lawyers themselves? The prompt asks how they grapple with this. You mentioned the coping strategies from Sarah Chen's book. Is there a point where they can't cope anymore?
In twenty twenty-four, a legal advisor in the UK Foreign Office resigned over the government's position on arms sales to Israel. She stated publicly that the legal advice she was required to defend was, in her words, "not consistent with international law." This is the dissenting lawyer problem — what happens when the person crafting the state's legal position believes the position is legally or morally wrong.
Her resignation is a kind of speech act. She's saying "I cannot be the state's voice because the state's voice is saying something I believe to be false.
It's happening more frequently. Not just in the UK — there have been similar resignations in other foreign ministries, though many are handled quietly. The lawyer resigns, signs an NDA, and the public never hears about it. Chen's book documents several cases where former government lawyers describe being asked to defend positions they considered legally indefensible. The proceduralism coping strategy only works up to a point.
We have a system where the lawyers are compartmentalizing, the citizens are silenced, the courts are willfully blind to internal division, and the outcome is eroding trust in the very institutions that are supposed to be resolving disputes. This is sustainable?
It has been, historically, because the alternative seemed worse. The Westphalian system — states are the subjects, individuals are objects — has kept the international order functioning for three and a half centuries. Without the unitary representation fiction, you can't have international law as we know it. If every treaty negotiation, every ICJ case, every ICC prosecution had to account for the full spectrum of citizen views within each state, the system would grind to a halt. The question is whether that tradeoff is still worth it.
Something is changing. The prompt mentions citizen-led litigation.
The climate cases are the big development. In twenty twenty-five, we saw citizens suing their own states at international tribunals. Young people in multiple countries brought cases arguing that their governments' climate policies violated their human rights. These cases force courts to confront a question the system has avoided for centuries — can a state represent citizens who are actively suing it?
Because in that scenario, the state is standing before the court saying "we represent the people," while some of the people are standing before the same court saying "no you don't.
It's a direct challenge to the fiction. And the courts don't have a good answer yet. The European Court of Human Rights has been grappling with this in the climate context — the Netherlands versus Russia case at the ECHR concerning flight MH seventeen is another example. The Netherlands argued Russia was responsible for the downing of the flight. Dutch citizens who were skeptical of the official narrative or sympathetic to Russia had no way to present a counter-position. The ECHR treated the Netherlands as a unified actor. But the question is getting harder to ignore.
Let's talk about the practical implications for someone who's actually doing this work. If you're a lawyer in a solicitor general's office, and you're drafting a submission that you know a significant portion of your fellow citizens disagree with, what do you do?
Based on the Chen interviews and the broader literature, there are a few approaches that are emerging. The first is what I'd call the footnote strategy — following the UK's Chagos example, acknowledging the diversity of views within the state in a preliminary statement or footnote. It's legally risky because opposing counsel can seize on it, but it's ethically defensible. It says "we are arguing X, but we want the court to know that not everyone in our country agrees with X.
The risk is that the court says "well, if your own citizens disagree, why should we accept your position?
That's why most government lawyers avoid it. The second approach is what Chen calls "procedural transparency" — being explicit about the authorization chain. Instead of saying "the State of X submits," saying "the Government of X, authorized by parliamentary vote of Y date with Z majority, submits." It doesn't solve the representation problem, but it at least makes the authorization visible.
That seems like a small change with potentially large effects. If every submission had to specify the vote margin that authorized it, the fiction of unanimous consent would be harder to maintain.
That's precisely why governments resist it. The third approach is the one that's actually being litigated right now — citizen standing reform. There are two cases on the ICJ docket as of April twenty twenty-six that directly challenge the unitary representation doctrine. The Climate Citizen case and the Minority Voice case. The outcomes could reshape international law.
What would reform actually look like?
There are several proposals. The most radical is a mechanism where a minority of parliamentarians — say, twenty-five or thirty percent — could authorize a separate submission to the court. Not a full party submission with all procedural rights, but something stronger than an amicus brief. A "dissenting state voice" that the court would be required to consider.
The court would hear from "the State of X" and also from "the Dissenting Representatives of X.
Which would align the legal fiction with democratic reality. Citizens are already divided — the fiction pretends they're not. Reform would make the division visible in the courtroom. A less radical proposal is a citizen referendum mechanism — if a certain number of citizens sign a petition, they can authorize a submission that presents a counter-view. Switzerland does something like this domestically, but it's never been attempted at the international level.
Both of those seem like they'd create chaos in the short term but potentially more legitimacy in the long term.
That's the tradeoff. The current system purchases efficiency and orderliness at the cost of legitimacy. Every year the fiction is maintained, the legitimacy gap grows wider. The question is whether the system can reform before the gap becomes unbridgeable.
Let me push on something. You said earlier that without the unitary representation fiction, international law can't function. Is that actually true, or is that just what we've been told?
That's a fair push. I think it's partially true and partially institutional inertia. There are already areas of international law where the fiction is relaxed. International human rights law, for instance, allows individual complaints against states. The European Court of Human Rights hears cases from individuals against their own governments. The Inter-American Court of Human Rights does the same. These systems function. They're not chaos.
The argument that allowing dissenting voices would destroy international law is empirically questionable. We already have systems that allow individuals to challenge their states.
The difference is those are human rights systems with specific treaty frameworks. The ICJ and ICC are built on a different architecture — state-to-state or state-to-individual-defendant. The doctrinal foundation is different. But you're right that the "system would collapse" argument is often deployed as a conversation-ender rather than a serious analysis.
It's the "this is how we've always done it" of international law.
Wrapped in Latin and citations to Grotius. But here's what I find interesting — the younger generation of international lawyers doesn't seem to buy it. Chen's book documents a generational divide. Lawyers who entered practice in the last decade are much more likely to question the unitary representation fiction. They've grown up in an era of fractured media ecosystems, declining trust in institutions, and citizen movements that organize across borders. The idea that a state speaks with one voice seems intuitively false to them in a way it didn't to their predecessors.
Because they've never experienced a world where that felt true.
If you came of age during the Cold War, the state-as-unitary-actor model made a certain kind of sense. States were the primary actors on the world stage. Citizens were represented through their governments, and if you didn't like your government, you could work to change it through domestic politics. That model doesn't map onto the world these younger lawyers inhabit, where a teenager with a smartphone can organize a global movement and citizens routinely identify more with transnational communities than with their state's legal positions.
The fiction is breaking down not because it was ever philosophically sound, but because the conditions that made it tolerable no longer exist.
That's the core of it. The fiction was always a fiction. Hobbes knew it was a fiction. The drafters of Montevideo knew it was a fiction. But it was a useful fiction — it enabled the resolution of disputes that would otherwise have led to war. The question now is whether it's still useful enough to justify its costs.
Let's bring this back to the practical level. If someone listening is a lawyer who works on state submissions, what should they actually do differently?
First, when drafting a state's legal position, explicitly acknowledge the limits of representation. Use the UK footnote model — a preliminary statement or footnote that notes the diversity of views within the state. It's a small gesture, but it chips away at the fiction and builds a record that future courts can cite. Second, push internally for procedural transparency. Advocate for submissions that specify the authorization chain — what body voted, with what margin, on what date. The more visible the authorization, the harder it is to maintain the pretense of unanimous consent.
For citizens who disagree with their state's legal position — organize to submit amicus curiae briefs. They're weak, but they're the only tool available. The ICJ and ICC accept them from individuals and NGOs. A well-crafted amicus brief won't carry the weight of a state submission, but it will be in the record. And as these citizen-led cases proliferate, courts will be forced to develop doctrine around how to weigh them.
The practical advice is: footnote your doubts, show your work on authorization, and if you're a citizen who disagrees, file an amicus brief even knowing it might be ignored.
Follow the Citizen Standing cases at the ICJ. The docket numbers are public as of April twenty twenty-six. Those cases will determine whether the unitary representation fiction survives in its current form or whether the system begins to accommodate dissenting voices.
There's something almost poetic about this. The entire edifice of international law — the treaties, the tribunals, the thousands of pages of jurisprudence — rests on the idea that a state can speak. And that idea has always been a metaphor. The question is whether the metaphor has outlived its usefulness.
Metaphors are how legal systems handle complexity. We say a corporation is a person, a state has intentions, a treaty expresses the will of the parties. These are all fictions that enable legal reasoning. The problem isn't that they're fictions — it's when the fiction becomes so detached from reality that it stops being useful and starts being harmful.
Harmful how, specifically?
In at least three concrete ways. First, it silences dissent. Citizens who disagree with their state's legal positions have no formal voice. Second, it erodes trust. When people see their government arguing positions they reject, in their name, they lose faith in both the government and the international legal system. Third, it produces bad law. When courts only hear the state's unified narrative, they miss the full picture. The Chagos advisory opinion might have been different if the ICJ had heard directly from Chagossians rather than filtered through the UK's submissions.
That last point is important. It's not just a procedural fairness issue — it's an epistemic issue. The court makes worse decisions because it's getting a curated version of reality.
Curated by the very entity whose conduct is being judged. It's like letting a defendant edit the prosecution's evidence.
Where does this leave us? The system is built on a fiction that's increasingly unsustainable. Reform proposals exist but face enormous institutional resistance. The legitimacy gap is growing. The lawyers are compartmentalizing. The citizens are filing amicus briefs that may or may not be read.
I think we're in the early stages of a transition. The unitary representation doctrine won't collapse overnight — it's too deeply embedded in too many treaties and too much jurisprudence. But the cracks are visible. The climate cases, the dissenting lawyer resignations, the footnotes acknowledging internal division, the citizen standing cases on the ICJ docket — these are all signs that the system is evolving, however slowly.
Evolution in legal systems is usually messy.
The transition from trial by combat to trial by evidence was messy. The transition from sovereign immunity to universal jurisdiction was messy. The transition from state-only standing to some form of citizen participation will be messy too. The question is whether the mess produces something more legitimate or just more complicated.
What's your bet?
I think we'll see a bifurcated system. For traditional state-on-state disputes — border delimitations, treaty interpretations, diplomatic immunities — the unitary representation fiction will persist because it works well enough and the stakes are manageable. But for cases involving human rights, war crimes, and existential questions like climate change, courts will develop mechanisms for hearing directly from affected populations. The fiction will be selectively relaxed rather than universally abandoned.
A two-track system. The fiction survives where it's useful and gets carved away where it's harmful.
Which is how legal systems usually handle these tensions. They don't resolve them — they manage them. The common law is particularly good at this, developing exceptions and qualifications over time rather than making clean breaks.
The civil law systems that dominate international tribunals?
Less comfortable with mess, more inclined to maintain doctrinal purity. That's part of why the reform process is so slow — the ICJ and ICC are heavily influenced by civil law traditions that prize systematic coherence over pragmatic adaptation. But even civil law systems evolve. They just do it more grudgingly.
If you're a listener who's not a lawyer, not filing amicus briefs, not following ICJ dockets — why should you care about any of this?
Because every international legal decision that's made in your name — whether it's about trade, climate, war crimes, territorial disputes — affects your life. The Paris Agreement, the WTO rulings on agricultural subsidies, the ICC investigations into conflicts that drive refugee flows — these aren't abstractions. They shape the world you live in. And right now, they're being shaped by a legal fiction that systematically excludes your voice unless it happens to align with your government's position.
The state speaks for you whether you want it to or not.
Whether you agree with what it's saying or not. Understanding that mechanism — and understanding that it's a mechanism, not a natural fact — is the first step to demanding something better.
The prompt asks how lawyers grapple with this. I think the honest answer is: they grapple with it imperfectly, using coping strategies that range from compartmentalization to resignation to quiet reform. Some of them are trying to change the system from within. Some of them have left. Most of them are doing their jobs and hoping the contradictions don't keep them up at night.
The system itself is grappling with it, in its own slow, institutional way. The citizen standing cases on the ICJ docket are the most important development in this area in decades. If the court rules that citizens have some form of standing to challenge their own state's legal positions, it would be the most significant reform of international legal procedure since the Nuremberg trials.
That's a big if.
But even the fact that the cases are on the docket — that the ICJ is being forced to confront this question directly — is significant. Twenty years ago, these cases would have been dismissed as procedurally impossible. Now they're being briefed and argued. That's progress, even if it's slow.
Alright, let's step back and pull out the actionable threads. For legal professionals drafting state submissions — acknowledge the limits of representation. Footnote it if you have to. Make the authorization chain visible. For citizens who disagree with their state's position — the amicus brief is a weak tool, but it's the one you have. Put your dissent in the record. For policymakers — the reform proposals are on the table. Dissenting state voices, citizen referendum mechanisms, relaxed standing rules. They're radical, but they're also the only way to align the legal fiction with democratic reality.
For everyone else — follow the Citizen Standing cases. The ICJ's decisions in the twenty twenty-six to twenty twenty-seven term will determine whether the unitary representation fiction survives intact or begins to crack. This is one of those moments where the architecture of international law is up for grabs.
Which brings us to the deeper question. If the state cannot legitimately represent all its citizens — and it can't — what replaces it? Direct citizen representation at international tribunals? Some kind of jury of states model? Or do we accept the fiction as a necessary evil and stop pretending it's anything more?
I don't think we get to stop pretending. The fiction has costs — we've spent this whole episode documenting them. The legitimacy gap is real and growing. The dissenting citizen problem isn't going away. The dissenting lawyer problem isn't going away. The system either reforms or it loses the consent of the governed.
A legal system without the consent of the governed is just words on paper.
Which is, ironically, exactly what the fiction was designed to prevent.
And now: Hilbert's daily fun fact.
Hilbert: In the late sixteen hundreds, naturalists in the Simpson Desert documented a slime mould that could focus sunlight through its translucent fruiting bodies, acting as a biological lens that concentrated light onto its spores to accelerate their drying and dispersal.
A slime mould with built-in optics. Of course there are.
The legal fiction of state representation isn't just a technical curiosity. It's the foundation of how eight billion people are governed on the world stage. Understanding its cracks is the first step to fixing them. If you found this episode interesting, share it with someone who thinks international law is boring. Thanks to our producer Hilbert Flumingtop. This has been My Weird Prompts. Find us at myweirdprompts dot com.
